The United States District Court jury, in Manhattan, decided that Gregory Fishman, should get $235,000 for emotional pain and $500,000 in punitive damages. Mr. Fishman, 45, is also seeking more than $1 million in lost pay, but whether he receives additional wage loss will be decided by Federal Judge Lawrence M. McKenna. It is unknown whether an appeal is planned.
In his 2006 complaint, Fishman argued that after meeting with Midtown Tunnel officials to discuss his attendance record, he overheard one of them use an expletive before calling him a Jew, an allegation denied by the accused official. That allegation, obviously believed by the jury, was the underlying basis for plaintiff’s claim of religious discrimination.
Fishman’s attorney, Thomas Ricotta, said that “Actions were taken against my client that were taken differently for other people who weren’t Jewish.”
One month following the previously discussed meeting, Fishman took an exam for a promotion and earned the third highest score. He was passed over for a promotion, while people who had scored much lower on the test (#38, for instance) received the promotion, the complaint said. According to the complaint, the only two who did not receive one were Fishman and another Jewish man.
Previously, in March of 2005, after Fishman filed an EEOC (Equal Employment Opportunity Commission) complaint, he was demoted and his salary was decreased by $8,000 a year, the complaint alleged. He finally left the job because of the harassment. “He lost a 15-year career with the M.T.A.,” Mr. Ricotta said. “It’s a shame.”
The case is not necessarily over, but, the allegations, if true, are a startling reminder that religious discrimination and blatant anti-semitism still exist in the workplace.
I asked Michigan Employment Discrimination Attorney Joey Niskar (a fellow Michigan Association of Justice Member), a fine attorney who specializes in pursuing and achieving justice for people like Mr. Fishman, about the burden of proof in these cases. According to Joey, there are two methods by which a claim for religious discrimination can be proven: By a showing of intentional discrimination (in other words, termination based, even in part, upon a person’s religion), or by showing circumstantial evidence of discrimination through a failure to accommodate an employee’s religious beliefs or practices. This can include an employer’s refusal to honor an employee’s religious Sabbath or religious holidays, and the wearing of religious clothing or articles. It is obvious that the allegations contained in the Fishman case fit this criteria quite well.
Attorney Joey Niskar further opined:
“In the context of an employer’s failure to accommodate a religion practice, the employee must be able to show that (1) he/she holds a sincere religious belief that conflicts with an employment requirement; (2) he/she has informed her employer of the conflict; and (3) he/she was discharged or disciplined for failing to comply with the conflicting requirement. Once the employee puts forth evidence of these three requirements, the burden of proof then shifts to the employer to prove that it made an offer of reasonable accommodation, or prove that any reasonable accommodation would cause it “undue hardship.” Undue hardship is not proven by the mere raising of hypothetical difficulties. The employer must actually demonstrate how the requested accommodation would cause an undue hardship to the employer.”
While it is unclear from the article reporting the outcome of the case whether a failure to accommodate religious practices occurred in the Fishman case, it is quite clear, if the allegations contained in the complaint are true (and the jury believed them), that a case for religious discrimination, using the standards set forth by Mr. Niskar, was made in the Fishman case.
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